Westinghouse Elec. Corp. v. Turnberry Corp., 81-1950
| Decision Date | 10 November 1982 |
| Docket Number | No. 81-1950,81-1950 |
| Citation | 423 So.2d 407 |
| Parties | WESTINGHOUSE ELECTRIC CORPORATION, Appellant, v. TURNBERRY CORPORATION and Charles Honey, et ux., Appellees. |
| Court | Florida District Court of Appeals |
C. Robert Murray, Jr., of Lane, Mitchell & Harris, P.A., Miami, for appellant.
Joseph S. Kashi of Conrad, Scherer & James, Fort Lauderdale, for appellee, Turnberry Corp.
Westinghouse Electric Corporation, defendant and third party plaintiff in the trial court, appeals from the adverse summary judgment on its third party complaint against Turnberry Corporation, third party defendant, seeking indemnity in compensating one Charles Honey, a worker in the employ of Turnberry, allegedly injured as the result of the wrongful doing of Westinghouse Corporation. We reverse.
Westinghouse, a sub-contractor, entered into a written contract with Turnberry, the owner and developer of a 16-story condominium, under which Westinghouse was to supply and install elevators for the condominium project. Pursuant to a "temporary acceptance" agreement, Westinghouse installed and delivered the elevators 13 months ahead of schedule. Charles Honey was injured when one of the elevators malfunctioned. Honey brought suit against Westinghouse alleging negligence, breach of warranty, and strict liability. Westinghouse filed a third party action against Turnberry claiming indemnification and contribution under the written temporary acceptance agreement. The agreement reads as follows:
We desire to have possession and use of the elevators (electric stairways) upon which you are working under contract with us, dated __________ in the building known as Turnberry Isles.
As these elevators are to be used by us prior to completion and inspection, and as we recognize that you have had no opportunity to inspect and determine the character of the work you have performed, or the condition of the elevators, in consideration of your turning them over to us in an incomplete condition we agree to operate them at our risk and expense; to provide a competent operator in the car; to use your service for maintenance including 24 hour emergency call-back service and pay you therefor $75.00 per month during temporary use of the elevator. We further assume complete responsibility for any accident to persons or property, howsoever caused, and will indemnify and save you harmless against all loss, damage, claims, liability or expense arising therefrom irrespective of whether such were due to the possession, use, operation or condition of the elevators, appurtenances or hatchways, or through failure to comply with any building laws or to any other cause.
The permission hereby granted shall not affect the terms of the contract mentioned above and may be revoked upon twenty-four hours notice in writing. Any agreement thereunder to furnish supplies or care of the elevators is not to commence until the signing of the final acceptance.
Monthly Maint to be invoiced to Turnberry Corp. at $75.00 per month.
On motion for summary judgment, the trial court determined the...
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